Opinion of Clifford, J., dissenting. stract statement, detached from any particular fact in question, is not admissible in evidence, because it depends for its effect on the credit of the person making it, and therefore is hearsay. 3. That mere narrative is never admissible, because such statements are detached from any material act which is pertinent to the issue. 4. That whenever the act of the party may be given in evidence, his declarations, made at the time, are also admissible, if they were calculated to elucidate and explain the character and quality of the act, and were so connected with it as to derive credit from the act itself, and to constitute one transaction. 5. That there must be a main or principal fact or transaction, and that such declarations only are admissible as grow out of the principal transaction, serve to illustrate its character, are contemporary with it, and derive some degree of credit from it. 6. That the main act or transaction is not, in every case, necessarily confined to a particular point of time, but whether it is so or not depends solely upon the nature and character of the act or transaction. Search is made in vain for any decided case, where the principles and tests which regulate and control the admission of such evidence is so satisfactorily stated, and with so much fulness and clearness as in that case.* Narration of the cause and manner of the injury has been carefully excluded since that decision in the courts of that State, even where the statements were made by a patient to his physician, as will be seen by the case of Chapin v. Marlborough, which was decided six years later. By the statement of the case, it appears that the plaintiff called a physician, and wished him to examine his leg, say ing that it gave him great pain, and the physician testified, that he said that he had been struck by a horse, on that leg, four or five months before. * Meck v. Perry, 36 Mississippi, 261. † 9 Gray, 245. Opinion of Clifford, J., dissenting. Seasonable objection was made to the evidence, but the judge, at the trial, admitted it, and the case was transferred to the Supreme Court, where a new trial was granted. In disposing of the case, the court say, the exception must be sustained, which was to the admission of the plaintiff's statement to his physician, that his leg had been struck by a horse; and the court add, that it was a statement of a fact, "and was used as evidence of that fact." It was, therefore, wrongly admitted, which shows to a demonstration, that the evidence in this case was also wrongly admitted, because it was admitted and used as evidence to prove that the injury and death of the assured were occasioned by the alleged accident. Death was occasioned by a stab, in the case of Commonwealth v. Hackett,* and it is suggested, that the ruling in that case qualifies the doctrine, as laid down in the preceding case, but there is no foundation for the suggestion, as the court say, that the declaration given in evidence was uttered immediately after the homicidal act, in the hearing of a person who was present when the mortal stroke was given, who heard the first words uttered by the deceased, and who went to him, after so brief an interval of time, that the declaration or exclamation of the deceased (I am stabbed) may fairly be deemed a part of the same sentence as that which followed instantly after the stab with the knife was inflicted. Many bodily sensations and ailments are of such a character that they can only be known to the person who experiences them, and, in view of that fact, the Supreme Court of that State decided, in the case of Barber v. Merriam,† that the statements of a patient to his physician, as to the character and seat of his ailments, when made for the purpose of receiving medical advice, were admissible in an action for a personal injury, but they expressly affirmed the doctrine of the previous decisions, to which reference has been made. * 2 Allen, 139. VOL. VIII. † 11 Allen, 322. 27 Opinion of Clifford, J., dissenting. Declarations of a narrative character were again offered iu the subsequent case of Commonwealth v. Densmore et al.,* and they were again rejected as hearsay evidence; and the leading case of Lund v. Tyngsborough was again approved and reaffirmed. Examined in the light of the decisions made by the Supreme Court of Massachusetts, since the case of Commonwealth v. McPike, I am of the opinion, that the rulings of the Circuit Court, in this case, find no support from any reported case in the volumes of the Massachusetts Reports. + Next suggestion is, that those rulings may be sustained upon the authority of the case of Rex v. Foster,† and of the case of Thompson v. Trevanion, but those cases are so imperfectly reported that they can hardly be said to be reliable. Grant, however, that the reports of the cases, though meagre, are reliable, still, I am of the opinion that the rules of evidence there adopted, are contrary to the modern decisions in both countries. They are both specially noticed by Mr. Roscoe, in his valuable Treatise on the Law of Evidence, and he says, they "are difficult to reconcile with established principles." Both admit the declarations to extend to the particulars of what was said, and though they (the declarations) were both made in close proximity to the event to which they relate, it is very questionable indeed, says the same writer, whether that ground alone is sufficient to render them admissible.§ Both of these cases are also cited by Taylor, in his more recent work upon the Law of Evidence, and yet, the rules which he promulgates, as tests to regulate the admission of such evidence, show that the rule adopted in those cases is not good law. His leading tests are as follows: 1. That declarations, though admissible as evidence of the declarant's knowledge or belief of the facts to which they relate, and of his intentions respecting them, are no proof of the facts themselves, and, therefore, if it be necessary to show * 12 Allen, 537. † 6 Carrington & Payne, 325. Opinion of Clifford, J., dissenting. the existence of such facts, proof aliunde must be laid before the jury.* 2. That, although acts, by whomsoever done, are res gestæ, if relevant to the matter in issue, yet, if they be irrelevant, * declarations, qualifying or explaining them, will, together with the acts themselves, be rejected.† 3. That where an act done is evidence per se, a declaration accompanying that act may well be evidence, if it reflects light upon or qualifies the act, but where the act is, in its own nature, irrelevant to the issue, and where the declaration per se cannot be received, no case has yet established the rule, that the union of the two will render them admissible. 4. That an act cannot be varied, qualified, or explained by a declaration which amounts to no more than a mere narrative of a past transaction, nor by an isolated conversation, nor by an isolated act done, at a later period.§ Condemned by all these tests, it is impossible to admit, that the two cases relied on, as supporting the rulings of the Circuit Court, can be good law, and if not, then those rulings stand unsupported in principle, or by any well-considered English or American decision.|| Obviously, the main fact in the case before the court was the alleged accident, and the bill of exceptions finds that there was no other evidence to prove that material allegation than the testimony of the plaintiff, and the son of the deceased, who knew nothing of what had occurred, except what they were told by the injured party.¶ Whenever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings, made at the time in question, are admissible for that purpose, but they are not admissible to prove a past occurrence, nor to prove that they were occasioned by such an accident * 1 Taylor on Evidence, § 523. 389. Ib. † Ib. 8 524. 524; Redfield on Carriers and Bailments, 454. Taylor on Evidence, ? 526, Nutting v. Page, 4 Gray, 584. Wright v. Tatham, 5 Clark & Finnelly, 770; S. C. 7 Adolphus & Ellis ¶ Baker". Griffin, 10 Bosworth, 112. Statement of the case. as that alleged in the declaration as the foundation of the plaintiff's claim. Mr. Justice NELSON also dissents from the opinion and judgment of the court, in this case, and concurs in this opinion. BLANCHARD v. PUTNAM. 1. Where, in a suit at law for infringement of a patent, witnesses testify to previous invention, knowledge, or use of the thing patented, the judgment will be reversed unless an antecedent compliance with the requirements of the 15th section of the Patent Act, requiring in the notice of special matter the names and places of residence of those whom the defendant intends to prove possessed prior knowledge, and where the same had been used, appear in the record. And this, although no reversal for this cause have been asked by counsel, but the case have been argued wholly on other grounds. 2. Semble, That the only proper comparison on a question of infringement, is of the defendant's machine with that of the plaintiffs, as described in the pleadings; and that it is no answer to the cause of action to plead or prove that the defendant is the licensee of the owner of another patent, and that his machine is constructed in accordance with that patent. ERROR to the Circuit Court for the Southern District of Ohio, the case being thus: The 15th section of the Patent Act enacts, that whenever the defendant relies in his defence on the fact of a previous invention, knowledge, or use of the thing patented, "he shall state in his notice of special matter, the names and places of residence of those whom he intends to prove to have possessed a prior knowledge of the thing, and where the same had been used," and if he does not comply with that requirement no such evidence can be received under the general issue. With this statute in force, Alonzo Blanchard and others, being owners by assignment of a patent for an improvement in bending wood, granted to Thomas Blanchard, December |